No-Fault Divorce: A National Catastrophe

S. Michael Craven

Center for Christ & Culture

This past week I had the privilege of sitting in for Kerby Anderson on Point of View, the nationally syndicated radio program founded by the late Marlin Maddoux.

To be honest, "sitting in" may be an overstatement as I fall far short of Kerby's ability and intellect when it comes to addressing today's most pressing issues, especially in the context of a live radio broadcast. Kerby along with co-host Carmen Pate do an exceptional job of raising the level of discourse on the major topics of our day. I strongly recommend this program to anyone who wants to understand relevant cultural and political issues from a learned biblical life and worldview.

While I always enjoy being on Point of View the subject of this program was of particular interest to me and I learned some things that I really did not realize about No-fault divorce.

I along with many others have long argued that the adoption of No-fault divorce, beginning in 1969, has served to increase family dissolution rates and undermine the institution of marriage itself, perhaps more so than any other single factor in history.

Constitutional and family law attorney, J. Shelby Sharpe who was a guest on last week's program said, "No-fault is national catastrophe. Anything which overturns the order or systems of things whereby families are destroyed and the whole of society adversely affected is by definition a catastrophe."

It may surprise you to learn that the efforts to advance No-fault divorce legislation were underwritten, in large part, by Hugh Hefner through the Playboy Foundation, which financed an "army of young lawyers" working to eliminate the legal protections previously afforded women and children. Alfred Kinsey also played an instrumental role in reducing these legal protections by falsely reporting that adultery was commonplace in most marriages. This reduced the stigma associated with adultery and ultimately served as the basis for eliminating all laws against adultery. Hefner and Kinsey both saw marriage as the final barrier to sexual freedom and thus determined to remove its inhibiting influence upon unrestrained sexual liberty.

Prior to No-fault divorce, the party seeking divorce was required by law to demonstrate guilt or cause on the part of the other party prior to dissolving the marriage, dividing the family's assets and destroying the two-parent structure essential for children. These measures provided strong legal protections primarily to women and children who might otherwise find themselves abandoned by husbands and fathers who simply no longer wanted to satisfy their familial responsibilities. (You might think me overly hard on men and unfairly sympathetic to women. Granted both men and women can be guilty of abandoning marriages, however, statistically speaking women and children are most often the victims.) In the cases of adultery the offending spouse risked losing everything. Today under No-fault divorce law adultery is not even considered relevant and therefore bears no relationship in the Court's decision.

Additionally, under the previous Fault system the state was limited in its actions and intrusion into the private affairs of family except in those cases where one of the parties committed a legally recognized offense against the other. In the wake of No-fault divorce the state has been given unprecedented access into and unconstitutional authority over what was previously sacrosanct: the family. Common law tradition in this country has historically treated the family as a preserve of privacy that was largely off-limits to the government. It was as Supreme Court Justice Byron White (1962-1993) called the "realm of family life which the state cannot enter."

This is what was most surprising to me; the constitutionality or lack thereof related to No-fault divorce. A retired Circuit Court judge writes, "To the characterization of No-fault divorce laws as both ungodly and inhumane I would add unconstitutional as well." Attorney Sharpe was confident that if a case involving No-fault divorce was ever brought before the U.S. Supreme Court it would no doubt be ruled unconstitutional and No-fault divorce abolished.

One of the principal protections afforded in the U.S. Constitution is the right to Due Process. Due Process encompasses the rules and principles for our legal system for the enforcement and protection of private rights. It gives the right to be heard regarding issues of life, liberty, or property. This means that no person shall be deprived of life, liberty, property or of any right granted him by statute, unless the matter involved is first adjudicated or ruled against him at trial.

No-fault divorce completely usurps the defendant's right to Due Process. In the case of my other guest, Judith Brumbaugh, her husband of twenty years had an adulterous affair, formed a relationship with the other woman and decided that he no longer wanted to be married. Under the No-fault procedure he was able to file for divorce claiming that their marriage was "irretrievably broken." Judith contested this claim hoping to preserve her marriage however the No-fault procedure ultimately gave her husband and the Court the right to deny her Due Process. She was in essence charged with a crime, found guilty and sentenced without ever being heard. The marriage contract was unilaterally dissolved.

Judith lost her home, her children and her husband; she was left nearly destitute from legal expenses and utterly without recourse - an act which is legally impossible related to every other contractual obligation in this country. And yet in the most important contractual obligation in society the plaintiff, under No-fault divorce, is able to break his or her contractual obligation without the right of Due Process being given to the other party in the contract. The defendant's life can be ruined, their liberty restrained in countless ways and their property taken away by the Courts.

This is a travesty of justice that affects more than a million families each and every year with an annual related cost to taxpayers of more than $48 billion. This, of course, doesn't even begin to consider the secondary societal effects of family dissolution, so easily achieved, upon crime rates, welfare rolls, as well as the emotional and psychological effects upon the children of divorce. No-fault divorce has created an easy divorce culture which according to Maggie Gallagher "demotes marriage from a binding relation into something best described as cohabitation with insurance benefits."

No-fault divorce is both a social and legal atrocity that needs to be abolished for the sake of families and children that have, for too long, been subjected to the tyrannical actions of family courts and has encouraged, through law, radical selfishness on the part of narcissistic spouses and parents.

This article originally posted in July 2006. Copyright S. Michael Craven 2006